Articolo a cura di James Dosio e Francesca Dupplicato
Revisione a cura di Carlo Matarazzo
Every year, new laws and treaties are signed all around the world extending and cementing the human rights that we all should be able to enjoy freely. The order of the world we live in is based on liberties such as freedom of opinion and expression, the right to work and education, and many others.
But are these rights truly universal? Are they respected and applied to every citizen in the world? In the midst of a general trend that is actively increasing rights across the globe, there are some states that are moving in the opposite direction, becoming, over time, places where the rule of law is hard to find, and the rights that we, in Europe, take for granted, are considered only a distant hope for millions of inhabitants. Afghanistan today is one of such states. In this article, we shall attempt to examine the legal situation this unique country is currently facing, beginning from its war-torn history, ending possibly, with some possible ways to move forward, despite the dire situation it faces today.
The Taliban: from the 1990s to today
A key entity to understand the current situation is the Taliban, who governed Afghanistan from 1996 to 2001, and were able to regain control of the country from 2021.
The “Taliban”, originated from the word “student” in Pashto, is a Sunni Islamist nationalist and pro-Pashtun ultraconservative political and religious faction, that emerged in Afghanistan in the mid-1990s following the withdrawal of Soviet troops, the collapse of Afghanistan’s communist regime, and the subsequent breakdown in civil order. The movement’s founding nucleus began as a small force of Afghan religious students and scholars seeking to confront crime and corruption; they consolidated their strength in the southern Afghanistan until the year 1994, during which they moved their way through the capture of several provinces from various armed factions who had been fighting a civil war. By the end of 1996 they had captured Kabul, Afghanistan’s capital, killed the country’s president, and established the Islamic Emirate of Afghanistan.
The Taliban faced significant resistance, especially after they asserted their own interpretation of law and order, which combined a strict religious ideology with a conservative Pashtun social code (Pashtunwali), leading to the creation of a brutally repressive regime.
Their policies included the near-total exclusion of women from public life, the systematic destruction of non-Islamic artistic relics and the implementation of harsh criminal punishments. By 2001 the Taliban controlled all but a small section of northern Afghanistan.
In 2001, following the 9/11 attacks on the Twin Towers, the United States demanded that the Taliban government hand over Osama Bin Laden, the leader of al-Qaeda, who had taken refuge in Afghanistan. Al-Qaeda was a terrorist group that had declared itself an Islamic state months earlier and claimed responsibility for the attacks on 9/11. Within a few months, the Taliban were defeated by a U.S. lead coalition, and American forces remained in the country to support a new democratically elected government (elected in 2004) and draft a democratic constitution.
From 2001 to 2021, the United States served as the political and military guarantor of the democratic government. During the presidency of President Biden, following the agreement of Doha between ex-President Trump and the Taliban, the United States withdrew its troops from Afghanistan. After the withdrawal was announced, the Taliban began aggressive military actions, capturing several cities and, in August 2021, they recaptured the capital, Kabul.
Afghanistan’s government today
Currently, the Taliban government, effectively extending across the national territory, is not recognized internationally by any sovereign state. The government has not drafted a constitution, nor is there any public debate regarding its creation. The form of government the Taliban claim to want to establish resembles that of Iran, with a supreme leader vested with executive power, however the Taliban’s organization is factional and complex, with internal divisions over the actual role and authority of this leader. These factional differences highlight a heterogeneous movement with conflicting visions for Afghanistan’s future, posing challenges to any unified or stable form of governance. The one thing universally agreed upon by the Taliban is the imposition of a strict interpretation of Sharia law.
What is Sharia law?
Before discussing the widely condemned morality laws implemented by the Taliban and the situation of women and girls, it is important to examine what Sharia law is, the different ways it is applied around the world, and why it can be misleading to make the Taliban’s view of Sharia law with Islamic law in general.
Sharia or Islamic law is the interpretation of legal principles contained mostly in the Quran, Islam’s fundamental religious text based on the teachings of the prophet Muhammad, and the Sunna, a collection of thousands of sayings and practices called hadiths that are attributed to the prophet Muhammad. Sharia law is a complex system of rules, that can be interpreted in very different ways by different schools of thought and in different moments throughout history, similarly to other modern legal systems.
Interpretative schools of Sharia law
Across the over 50 Muslim majority nations throughout the world, more than half implement some form of Sharia law. While the Sharia itself is best defined as a system of religious principles and rules, Islamic law put into practice by states is a legal system derived from an activity of legal interpretation of Sharia by scholars. Interpretation of Sharia requires a deep Quranic knowledge, as well as fluency in Arabic, and excellent legal background. As with all important legal sources, over time various schools of thought have been formed, following different doctrines of interpretation. The interpretation of Sharia is often influenced by local customs, which is why across the Muslim world it often results in different rules.
Some Muslim scholars claim the religious practice of tajdid permits for practices under sharia to be changed or removed completely, as a symbol of constant renewal in the search of purity. More rigid interpretative schools, on the other hand, claim it is necessary to remain faithful to a strictly textual approach, following the commands and principles as they would have been followed in the seventh century.
Sharia law around the world
In the map we can see an overview of the application of Sharia. Clearly, the majority of the countries in which it is applied have a large Muslim majority population. However, the content and implementation of Sharia varies greatly between countries. Afghanistan qualifies among the “Classic” category, highlighted in green, meaning it applies the most conservative interpretation of Sharia, not only limited to family law but extending to almost all aspects of the legal system.
Sharia law is not just applied in Muslim majority countries: in many states across the world, Sharia law is used as the basis for family law for members of the Muslim faith, as an alternative discipline as opposed to civil marriage. In the United Kingdom, Islamic tribunals can make binding decisions based on an agreement between the parties on family and inheritance law.
Sharia and corporal punishments
One of the most prominent reasons for which Sharia law is considered controversial in Western countries is the imposition of corporal punishment in countries like Afghanistan, Iran and Saudi Arabia.
There are several reasons why, however, associating the concept of Sharia with such practices is misleading. Firstly, when discussing corporal punishments from a comparative perspective, it is important to highlight that evidentiary thresholds that Islamic religious texts require are so high that to reach the standard of proof necessary to apply these punishments is almost impossible at trial. It is also important to mention how some of the punishments considered most cruel do not derive directly from Islamic texts, but rather from scholars and secondary texts (such as the book of Deuteronomy, also included in the Christian Bible and the Torah). Secondly, physical punishments are very rarely included even in legal systems that rely strongly on Sharia: despite the large number of Muslim majority countries, only 12 apply physical punishments of any kind.
Overall, the principles of Sharia, as with any religious system, can be interpreted in many different ways. Dozens of countries, both Muslim majority and non-Muslim majority, implement Sharia law in some shape or form, and only in very few countries, such as Afghanistan, we find more extreme religious groups that adhere to a school of interpretation that results in strict practices that many in the West condemn. With this knowledge, we are best placed to examine the system of rules set up by the Taliban since 2021, under their interpretation of Sharia.
Gender apartheid: the situation of women and girls today
In the last two and a half years after regaining power in Afghanistan, the Taliban have created the world’s most serious women’s rights crisis. They have systematically violated the rights of women girls to education, paid employment, freedom of speech and movement, and political participation among many others.
There is broad consensus that the situation in Afghanistan is one of the most dangerous Human crisis concerning women’s rights and gender discrimination . The country is ranked last on the Women, Peace and Security Index, and the UN Special Rapporteur on the human rights situation in Afghanistan has referred to “the unprecedented deterioration of women’s rights.”
Under the Taliban regime, we can observe many different forms of discrimination: restriction of freedom of movement, dress codes, with women who flout such codes putting their male relatives at risk of imprisonment as well; little or no protection when threatened by violence, often caused by the forced marriages of which numerous children are victims; no right to an education and rapidly decreasing work opportunities, with the Taliban having banned not only women’s employment in private sector, but also women’s work on most roles in aid agencies, putting more women and girls in crisis, as well as countless other restrictions.
The absence of support and protection from aid organizations is causing food insecurity amid the escalating economic crisis, while Afghan women and girls are also losing basic freedoms— such as the ability to walk in a park, play sports, or enjoy nature.
Women who protest these violations face terrible consequences including enforced disappearance, arbitrary detention, and torture. The Taliban continue with severe abuses, with threats, beatings and abusive conditions of detention being common occurrence; recently they even started detaining women under the accusation that they were not were not wearing “proper hijab.”
One of the newest laws states: “Whenever an adult woman leaves her home out of necessity, she is obliged to conceal her voice, face, and body”. Such provision implies that women must completely veil their bodies (including their faces) in thick clothing at all times when in public “to avoid leading men into temptation and vice”; women’s voices are also considered to be potential instruments of vice and so will not be allowed to be heard in public under the new restrictions. Women must also not be heard singing or reading aloud, even from inside their houses.
Reactions around the world
Having seen how drastic the situation, we must ask ourselves: why is none talking about this? Why is a humanitarian crisis of this dimension and importance not discussed as it should be? Human Rights Watch, Amnesty International, the International Commission of Jurists, and Madre have all adopted the position that the Taliban have committed crimes against humanity of gender persecution, which fall within the jurisdiction of national and international courts including the International Criminal Court.
The response of governments and international organizations to this crisis, though, has been poor. It has been disorganized, politicized, chaotic, often apathetic, and, frankly, un-feminist. Many diplomats, affirm how important it is to “engage” with the Taliban, even though to this day, it is very clear that such “engagement” has produced nothing in terms of convincing the Taliban to end their assault on women’s rights—and may even be counterproductive.
Since the Taliban's takeover in September 2021, Europe has consistently condemned the discrimination occurring in Afghanistan and reaffirmed its commitment to supporting the Afghan people in their pursuit of peace and stability. This includes advocating not only against discrimination, but also emphasizing the importance of access to primary and secondary education, as well as the fundamental rights to work and freedom of movement.
A way forward?
In this situation, what is the way forward? What should the international community do to stand with Afghan women and, in doing so, defend women’s rights everywhere? At the United Nations (UN) level, leaders should support efforts to adopt a treaty on crimes against humanity that would strengthen protections for women and explore the inclusion of “gender apartheid”. As for international courts, political leaders should ensure that the ICC and other courts have the resources and cooperation needed to hold Taliban leaders accountable for gender persecution, especially through prosecution for the most brazen violation: gender-based violence.
Furthermore, Afghanistan remains a party to many international human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Rights of the Child (CRC), and so remains formally bound to such agreements. More pressure should be exerted by authorities around the world to restore force to such conventions that still bind the Taliban, albeit without any coactive force. Regarding international aid, women and girls should be prioritized by agencies to compensate for the discrimination they face.
When negotiating with the Taliban, a new push should be made on a condition-based recognition of the Taliban government, expecting serious concessions in exchange for the recognition, essential to the Taliban government, to kickstart international trade and the economy. Finally, political pressure must be used to the utmost degree not only through statements and verbal condemnations, but through symbolic political acts such as travel bans for Taliban leaders and targeted economic sanctions.
There are several instruments at the disposal of governments around the world. If they wish, as they claim, to protect rights worldwide, the time has come to stand with the Afghan people with concrete measures, using the tools provided by international law to defend the rights of Afghan women and girls just as much as those of any other nation.
BIBLIOGRAFIA:
The Washington Post - The Taliban says it will rule under sharia law. What does that mean? (August 2021): https://www.washingtonpost.com/world/2021/08/19/sharia-law- afghanistan-taliban/
Council on foreign relations – Understanding Sharia: The Intersection of Islam and the Law: https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and- law#chapter-title-0-7
UNOCHR - New morality law affirms Taliban’s regressive agenda; experts call for concerted action: https://www.ohchr.org/en/press-releases/2024/08/new-morality-law- affirms-talibans-regressive-agenda-experts-call-concerted
Council on foreign relations - The Taliban in Afghanistan - background
European Council – Timeline of the EU’s response to Afghanistan’s crisis
https://www.consilium.europa.eu/en/policies/afghanistan-eu-response/timeline- afghanistan-the-eu-s-response-to-the-crisis/
https://www.amnesty.org.uk/womens-rights-afghanistan-history https://www.usip.org/tracking-talibans-mistreatment-women
https://www.ispionline.it/en/publication/afghanistan-the-first-two-years-of-the-taliban-in- power-138062
https://www.dni.gov/nctc/groups/afghan_taliban.html#:~:text=The%20Taliban%20is%20a%2 0Sunni,from%201996%20until%20October%202001.
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